People v. Turmon

417 Mich PEOPLE v TURMON 14). (Calendar 8, Argued Docket No. 69776. June No. Decided 21, November 1983. Detroit, pled guilty R. Turmon in Edward the Recorder’s Court of Crockett, III, J., George possession pentazocine. W. of of The P.J., Maher, Marutiak, Appeals, (Beasley, M. Court R. J. J., dissenting), grounds on reversed that the authorization Pharmacy classify of the Board of controlled substances was Legislature an unconstitutional of the to create criminal offenses and that the defendant did not have possession notice that was a criminal offense 55893). (Docket people appeal. No. The Williams, opinion by joined by In an Chief Justice Justices Levin, Ryan, Brickley, Cavanagh, Boyle, Supreme Court held: Delegation by Pharmacy to the Board of authority to schedule controlled substances in accordance specific criteria is not unlawful. Sufficient standards and safeguards are included in the controlled substances act to satisfy requirements separation powers of the doctrine of process. Promulgation publication by and due the board of designating pentazocine the rule as a controlled substance and referring to the controlled act substances was not an abuse of provided discretion and sufficient notice to the defendant that proscribed.

his conduct was 1. The controlled substances act establishes schedules of according controlled substances which rank the substances prescribes penalties their for abuse and for the unau- manufacture, distribution, possession, thorized or use of the substances on the basis of the nature of the conduct and the classification and amount of the substances involved. The act ^[2] [1-5] ^{[4] [3] [5]} 2 Am Jur 1 Am Jur 1 Am Jur 1 Am Jur 25 Am Jur 2d, 2d, 2d, 2d, References 2d, Administrative Administrative Administrative Law 14.§ Administrative Drugs, Narcotics, for Points in Headnotes Law 150. Law 787. Law §§ § § and Poisons §§ 17. People v Turmon grants power modify the sched- advisory in ules the act and a establishes scientific modifying commission to assist the board the schedules. The provisions clearly provide proper guide framework to legislative policy gradu- board’s actions and ensure that the severity pertaining ate offenses to controlled substances according dangerousness drug of a and its for given abuse will be effect in the board’s evaluation. The board factfinder, guidelines Legisla- functions within the as a but the policy. ture control retains Delegation legislative powеr agencies 2. to administrative may safeguards be sanctioned where sufficient standards and provided agencies’ to circumscribe the use of and legislative policy provide ensure effectuation of and a check of agency action. The standard of review does not differ where criminal sanctions obtain. Pharmacy automatically incorpo- The Board of need not

rate federal substance classifications into the controlled sub- gives reacting stances act. The act the board broad discretion in by government. to action the federal The board mirror the government object action of the federal to the action and provide hearing disposition. case, for alternative In this adopt penta- failure of thе board to the federal classification of delegated authority. zocine was not an abuse of incorporates 4. The controlled substances act the notice procedures of the Administrative Procedures Act which re- quires promulgated published that rules under the act be in the case, classifying pentazo- administrative code. In this the rule published year cine as a controlled substance was in the code a require before the defendant’s arrest. It is not unreasonable to persons to be familiar with the laws of the state reference to compilations of the laws. Reference to the controlled substances supplementation act would lead the reader to conclude that the of the schedules of controlled substances the board should be promulgating consulted. Because the action of the board in pentazocine enactment, statutory classification of not a requirement does not violate the of the constitution that re- vised or amended sections of statutes must be and re-enacted published length. at The revision of the classification of sub- pentazocine intelligible stances to include was clear and provided sufficient notice that the defendant’s conduct was proscribed. Reversed. Kavanagh, dissenting,

Justice would hold that the controlled 417 Mich 638 act is substances unconstitutional and would not disturb the reversal of the defendant’s conviction. (1982) App 323 NW2d 698 reversed.

Opinion of the Court — — 1. Criminal Law Administrative Law Controlled Sub- stances. Delegation by Pharmacy to the Board of authority to schedule controlled substances in accordance with specific unlawful; criteria is not sufficient standards and safe- guards satisfy are included in the controlled substances act to requirements separation powers of the doctrine of (MCL 333.7201, process 333.7211-333.7219; due MSA 14.15[7201],14.15[7211]-14.15[7219]). — — 2. Criminal Law Administrative Law Controlled Sub- — stances Pentazocine. Promulgation publication by of a rule designating pentazocine referring as a controlled substance and applicable sections of the controlled substances act was not an’ pos- abuse of discretion and sufficient notice that (MCL proscribed 333.7215; session of was 14.15[7215]; AC, 338.3120[2][a]). R — — 3. Criminal Law Administrative Law Controlled Sub- stances. Pharmacy incorporate The Board of need not federal controlled act; substance classifications into the controllеd substances exercising provided act, by its broad discretion the board may government mirror the action object of the federal provide (MCL hearing disposition action and for alternate 333.7204; 14.15[7204]). MSA — — Agen- 4. Criminal Law Administrative Law Administrative —cies Classification of Crimes. power The to define exclusively crimes need not be exercised and completely by Legislature; delegation power may be agency provided made to an administrative sufficient standards safeguards specified delegating in the statute power. — — 5. Criminal Law Administrative Law Controlled Sub- — stances Pentazocine. possession Sufficient proscribed notice that was activity criminal classifying penta- was where the rule published zocine as a controlled substance was in the adminis- Turmon Court year trative code a before a defendant’s arrest con- clearly intelligibly trolled act substances indicated that supple- schedules of controlled substances in the code be (MCL promulgated Pharmacy mented rules the Board of 333.7216; AC, 14.15[7216]; 338.3120[2][a]). MSA R Kelley, Attorney General, Frank J. Louis J. Caruso, General, Cahalan, Solicitor William L. Prosecuting Attorney, Reilly Dep- Wilson, Edward uty Appeals, Baugh- Timothy Chief, Civil and A. Principal Attorney, Appeals, man, and Janice M. Prosecuting Joyce Attorney, Bartee, Assistant for people. Appellate (by State Defender Sheila N. Robert- son) for the defendant. Williams, C.J. The issue in this case is whether 14.15(7215), 333.7215; which authorizes Pharmacy classify controlled sub- legislatively stances within schedules, established legislative power. is an unlawful two-pronged Defendant directs a attack on the (a) delegation, claiming that the statute: lacks govern sufficient standards to the exercise of the (b) delegated power, represents an unconstitu- attempt by delegate tional its exclusive to create crimes. Additional issues raised are whether the Board of abused delegated authority and whether defendant was proper prohib- denied ited. notice that his conduct was Legislature’s delegation We hold that authority pre-exist- to add controlled substances to ing specific schedules in accordance with criteria is power despite not an unlawful penal consequences fact that flow from violation of the board’s rules. The statute contains sufficient safeguards infirmity standards and to avoid under 417 Mich 638 op separation powers process due both chal- did lenges. Additionally, the board not abuse its promulgation discretion in the of the rule.

I. Facts act, Under controlled substances MCL 14.15(7101) 333.7101 et et seq.; seq., oifenses MSA penalties dealing regulated with drugs are defined in part according dangerousness abuse the substance involved.1 After initially classifying number of substances onto schedules, one of five delegated to "add sub to, stances or delete or reschedule all substances schedules”, 333.7201; enumerated in the MCL 14.15(7201), MSA and specifically authorized supplement each board schedule new sub found meet stances threshold criteria for that 14.15(7211), 333.7211; classification. MCL MSA 14.15(7213), 333.7213; 333.7215; MCL MSA MCL 14.15(7215), 14.15(7217), 333.7217; MSA MCL MSA 14.15(7219). 333.7219; MCL MSA In the State Board Pharmacy, pursuant to its under authority 333.7215; (also 14.15(7215), classified known Talwin) name, its trade as a schedule 3 controlled information, AC, substance. This embodied as 1979 338.3120(2)(a), R was first in published the Michi gan Administrative Code’s Quarterly Supplement 92) (No 99, p August issued later appeared Michigan Administrative Code.2 closely drug dangerous This act resembles the federal narcotic and law, pattern 21 USC 801-904. The federal law in turn served as the adopted

for with Uniform Controlled Substances Act which has been Rico, Virgin minor in 46 variations states as well as Puerto Islands, and the District of Columbia. Uniform Controlled Substances Act, ULA, (1983 p Supp). 338.3120(2)(a) AC, 2 1979 R reads: People v Turmon 643 Opinion of Court 20, 1980, August

On defendant charged was with possession intent deliver 22 tablets of phenmetrazine possession with intent to de- pentazocine. September 18, liver 43 of On tablets 1980, he to the pled guilty charge reduced of of possession pentazocine. 333.7403(2)(b); 14.15(7403)(2)(b). Defendant was sentenced to two years probation. right,

On as of dеfendant appeal challenged the of Legislature’s delegation authority Board of Pharmacy schedule controlled substances and given he claimed that was not that posses notice sion a of was criminal Finding act. meritorious, both of Appeals claims Court Turmon, v People reversed defendant’s conviction. (1982). 345; 117 Mich App NW2d February granted On this Court Wayne County Prosecutor appeal. leave to (1983). Mich 888 Delegation

II. to the Board of A. Sufficiency of Standards challenges

Defendant the controlled substances act as an unconstitutional of delegation authority “(2) specifically excepted Unless or unless listed in another sched- ule, material, compound, mixture, preparation a any or that contains quantity following having depressant substances effect on the system, (whether including salts, optical, central nervous isomers position, geometric), isomers, of salts such whenever the salts, isomers, ‍​​​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌​​‌​​​‌​​​‌‌​‌​​​​​​​‍possible existence of such and the salts of isomers is specific designation, within the chemical schedule 3: included in "(a) Chlorhexadol Pentazocine Sulfondiethylmethane Glutethimide Lysergic Sulfonethylmethane acid Lysergic acid amide Sulfonmethane”. Methyprylon holding unconstitutional, provision In the Turmon panel rejected expressly holding panel, People of an earlier v Uriel, 102; App (1977),approving 76 Mich 255 NW2d 788 constitution ality. Subsequently, See panels rejected holding two have Turmon. O’Neal, People (1983); App v 122 Mich 333 NW2d 56 (1983). Berry, App 237; 333 NW2d 234 417 Mich 638 sufficient provide failed to in that an abuse prevent safeguards pro- the standards asserts Defendant power. for two reasons. in the act are deficient vided First, separation to avoid a the standards fail decision, scheduling he the final problem: powers left to improperly policy is a determination argues, rather the administrative the discretion Second, or as a perhaps Legislature. than defendant asserts allegation, the first corollary scheduling discretion of the unfettered that protection. We process devoid of due conclusions. disagree with both evaluating in has utilized criteria this Court The Dep’t in are set forth standards Seaman, 299, 309; Resources v 396 Mich Natural (1976): 206 NW2d determining for fast rule exists no hard and "While stan- provided has sufficient given a statute whether in dards, guiding principles have evolved a number making assist in a determi- Michigan jurisprudenсe to nation in this case. whole;

"First, a question in must be read as the act not be isolated but provision question in should the must be construed with entire act. reference to the 47, 53; 264 Corp Mich NW Argo v Atwood Oil [274 (1935)]. "Second, reasonably pre should be 'as the standard v subject requires permits’. or Osius cise as the matter 25; 58 Shores, 75 NW2d St Clair (1956).7 ALR2d 1079 vary with the preciseness the standard will "The regu- subject degree to which complexity and/or * * * require constantly changing regulation. lated will "Third, in possible construed if the statute must be invalid’, valid, as as not way such a conferring as to 'render 'administrative, legislative’ power and not Argo authority’. vesting 'discretionary, arbitrary, not Atwood, Corp supra, 53.” Oil People v Turmon Opinion op the Court Footnote amplifies principle: second

"A standard cannot be considered 'as reasonably precise subject requires permits’ as the matter if it process requirements. not satisfy does in State due See decision Vanderkloot, Comm v Highway Mich (1974).” 169-178; 220 NW2d B. Application Principles requires

The first principle the controlled read in entirety substances act be to determine if the has Legislature guidelines sufficient to direct and constrain the exercise of agency’s delegated authority. for the Guidelines Board of incorporated appropriate sections of the statute.

The controlled substances act establishes com- prehensive catalog of penalties offenses and relat- ing to controlled substances. MCL 333.7401- 333.7408, 333.7410; MSA 14.15(7401)-14.15(7408), 14.15(7410). act The also establishes five schedules schedules, of controlled substances. These initially formulatеd Legislature, rank the substances according for abuse. The prescribed penalties for the controlled substances offenses on basis of combination three factors: the nature of the conduct and the classifi- cation and amount of the involved. substance

The act grants "administrator”, defined by 14.15(7103) 333.7103; MCL MSA as "the Michigan board of pharmacy or its designated or established authority”, original to modify the sched- ules by the Legislature. 333.7201; established MCL 14.15(7201). MSA The eight-member board shall registered consist of pharmacists six licensed in the state for at least years represen- two and two tatives of general public. 333.17721; MCL MSA 14.15(16135).. 14.15(17721), 333.16135; MSA Mich Opinion op the Court any to, from, Before substance is added deleted among schedules, or reclassified the board eight must consider each of factors: "(а) potential The actual or relative for abuse. "(b) The scientific pharmacological evidence of its effect, if known. "(c) The state of current knowledge regard- scientific ing the substance.

"(d) history pattern The and current of abuse. "(e) duration, scope, significance The of abuse. "(f) public The risk to the health.

"(g) potential The produce of the substance to psychic physiological dependence liability. "(h) Whether precur- substance is an immediate already sor of a substance controlled under this arti- 14.15(7202). 333.7202; cle.” MCL MSA In order to factor, assist consideration of each advisory the statute also establishes a scientific 14.15(7206). 333.7206; commission. MCL The physi- seven-member commission consists of two pharmacists, cians, two the chief of the crime laboratory Department detection Health, of Public health, the director of mental police. director of state The board must receive although recommendation, this commission’s it is suggestions. not bound regard may With schedule, to each the board specific only include a substance on a schedule possess after the board finds certain charac- example, placed teristics. For a substance be only on schedule 3 if the board all of finds following: "(a) The substance has a for abuse less than

the substances listed in schedules and 2. "(b) The substance has currently accepted medical use in treatment in the United States. People v Turmon Opinion of the Court "(c) Abuse of the substance lead to moderate or physical dependence high

lоw or psychological depen- .14.15(7215). 333.7215; dence.” provisions provide clearly proper

These frame- guide agency legis- work to and direct action. The policy expressed apparent: lative the statute is graduated controlled substance offenses to be according severity dangerousness in drug to the potential involved and for abuse. Classifi- placed agency cation the substances is in an expertise necessary the with factual technical to make the evaluation, and access to relevant informa- provided. guidelines tion Numerous direct the provisions board’s evaluation. These the given insure that expressed policy in the act will be through agency’s effect and substance the factual evaluation. Legislaturе’s clearly pol-

Given the articulated icy, argument reject we must defendant’s that statutory provisions scheduling "leave the final policy conclusion to a determination” Board Pharmacy. statutory scheme, In this findings regarding makes factual and abuse potency drugs, compares these factual find- ings scheduling criteria established Legislature, thereby appropriate locates Thus, classification of the substance. the Board of Legisla- factfinder; ‍​​​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌​​‌​​​‌​​​‌‌​‌​​​​​​​‍functions as a policy-making ture retains the control. Addressing principle, the second the defendant standards, concedes that "[t]he in and of them- appear precise reasonably subject selves, as as the legislation requires permits”. matter of the We agree. previous Our examination the stаtute Legislature provided revealed clear, de- guide agency tailed standards action and to judicial Further, facilitate review. we note that the 417 Mich 638 648 Opinion of Court are drugs developed rate at which new rapid and the incredible ingenuity introduced exhibited in novel methods drugs of abuse discovery flexibility necessitates a measure of the area of Kellogg; See State v 98 drug regulation. Idaho Sargent, State v 252 543-544; (1977); 568 514 P2d (1969). 579; 449 P2d 845 Or inclusion of Additionally, Administrative as provisions mandatory proce- Procedures Act dures followed in the board’s rulemaking be further abuse of against possible delegated insures 333.7201; power by Pharmacy. 14.15(7201). Therefore, consonant the third principle of result, preferring a valid to an invalid we conclude delegation that authority Board of is valid and constitutes neither an un delegation constitutional of authority nor allows act in an arbitrary board to or discriminatory manner.4 4 clearly majority position among This is the 25 states which delegation have addressed the issue of similar controlled substances constitutional; acts. Nineteen states have found the act decisions were rendered 16 of these by highest appellate the states’ courts. Ex (Ala,

parte McCurley, 1980); State, 153; Curry 390 So 2d 25 v 279 Ark (1983); State, (Fla, 1979); 649 SW2d 833 v Cilento v 377 So 2d 663 Ward State, 60; (1981); Kellogg, 248 281 Ga SE2d 503 State v 98 Idaho 541; (1977); (1977); People 182; Avery, 568 P2d 514 v 67 Ill 2d 367 NE2d 79 Commonwealth, (Ky, 1970); Hohnke v 451 SW2d 162 State v Boyajian, (Me, 1975); (Minn, King, 344 A2d 410 State v 257 NW2d 693 1977); (Mo, Thompson, 1982); Montoya State v 627 SW2d 298 v O’Toole, 303; (1980); Einhorn, 94 NM 610 P2d 190 v 75 2dMisc 183; (1973); Lisk, 474; App 346 986 State v NYS2d 21 NC 204 SE2d (1974); Brown, (Okla 1978); App, 868 State v 576 P2d 776 Crim State v — Sargent, 579; (1969); —; Peloquin, 252 Or 449 P2d 845 RI State v (1981); Edwards, (Tenn, 1978); 427 A2d 1327 State v 572 SW2d 917 State, (Tex 1977); App, Threlkeld v 472 SW2d Crim State ex rel 718; Conaty, (1972), part Scott v 155 W Va 187 SE2d 119 overruled in (1974). Grinstead, 1001; State v 157 W Va 206 SE2d 912 highest appellate We note that six states’ courts have found the act (La, 1980), Rodriguez, unconstitutional. v State 379 So 2d 1084 Howell State, (Miss, 1974), Krego, 14; So 2d State v Misc Ohio (1981), Johnson, 556; 433 NE2d 1298 (1970), State v 84 SD 173 NW2d 894 Gallion, (Utah, 1977), Powell, State v 572 P2d 683 and In re (1979). Wash 2d 602 P2d 711 People v Turmon op Delegation C. of the Power to Create Criminal Offenses argues regardless

Defendant also how strin- Legislature, gent set the standards this According must fail. to defen- specifically dant, crimes, more creation felony inherently offenses, is an task delegated. which not be recognize matter, As a threshold we that some legislative powers simply delegable. not Though specifically by any not mandated constitu- provision, prohibition tional this arises from the government. powers basic structure of the Certain legislative require by branch exercise the Representatives, both, Senate or the of House in purposes example, order for their to be served. For grants § Const Representatives 7 art to the House of 11, 1963, power impeach the civil officers prosecute impeachment. and to the For the House assign impeachment power to or ple this to a commission

agency spirit princi- would violate the Here, § of art the nature of the function 11, govern- within the constitutional of framework the precludes delegation. ment complexities govern- However, of modern today many ment that necessitate facets of tradi- tionally "legislative” power be exercised admin- agencies. istrative dards and Provided sufficient that stan-

safeguards, pro- above, as discussed agencies’ legisla- vided to circumscribe the use of power, thereby insuring legisla- tive effectuation tively policies declared and a means to "cheсk” However, (Rodriguez, under statutes review in two of the cases supra, Johnson, supra) provisions included for automatic inclu- any federally drug. Grinstead, sion of scheduled State v See also supra. provision, statute, Michigan This is not which included in ruling. served as the basis for the court’s displayed vigor upholding The federal courts have even in more similar federal statute. See 47 ALR Fed 869. 417 Mich 638 650 op action, delegation legislative power such agency this other repeatedly been sanctioned has 2.10, Davis, Law, p Administrative courts. See § (1976 2.04, 113, Supp). 30p and § notes, agree, and we correctly Defendant inherently legislative of crimes an the creation (5 Wiltberger, 18 US task. See United States v Wheat) 2d, 76, 95; (1820); L Ed Am Jur Law, 11, 124; Wharton, Criminal p Criminal § (C. ed), 31-32. As stated pp Law Torcia § Hanrahan, 619; 42 NW (1889): crime, shall and how "To declare what constitute sovereign power punished, is an exercise of

shall be of a of the state, legislative department is inherent in the government.”

However, the standard of review in- not differ when statute delegation does is not sanctions. The volves criminal in a including penal from sanctions ‍​​​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌​​‌​​​‌​​​‌‌​‌​​​​​​​‍precluded a legislative policy, which declares articu- statute policy, and autho- guidelines lates effectuate implement pur- an rizes executive pose.

Review of this Court’s cases which scrutinized Legislature’s to create per has crimes reveals that such been safeguards public mitted if protect sufficient capricious delegated from abuses of arbitrary discretion.5 Hanrahan, People supra, parties, We note that v cited both Hanrahan, upheld dispositive this a not the issue at hand. In Court of municipal keeping prostitu- houses of ordinance which criminalized city’s granted specifically designated legislatively

tion. The charter council, legislative body. power duly The to elected this Court found that Const delegate legislative power the common a Legislature to art 38 authorized § townships, regarding concerns to local cities, villages. v Turmon Opinion op the Court

In Senate of the Homes Club of America Happy Alpena v Board of Supervisors, 117; 99 Mich (1894), NW 1101 the Court held a unconstitutional legislative whereby persons scheme for arrested acquitted drunkenness would be upon completion private of a alcohol rehabilitation program. Since private program each сould enforce its own rules— as or as as it stringent lenient chose —and compli- ance with these rules varying automatically re- acquittal, sulted in the Court found the Legis- that private delegated lature had corporations criminals, power acquit and thus to enact crimi- nal complete law. This abdication degree role and failure to any insure of accounta- bility in the creation of crimes was held unconsti- tutional. hand,

On the other statutory arrangements in which the provides guide- regulatory lines for subject prescribes a area and penalties for violations of rules to promulgated be an placed charge of the regulatory activity have Thus, been approved by the Court. in People Soule, (1927), 213 NW 195 the Court gave reviewed an act which the commission of conservation the power to declare season open for birds, fish, and fur-bearing animals. The Legisla- ture had declared the commission was to regulate the wildlife of the state. Procedures were set forth to promulgate rules, penalties incarceration) (including were for established vio- lation promulgated of properly rules. The Court found that this delegation rulemaking power with attached penalties criminal included suffi- cient safeguards separation powers avoid challenge. recognized Pragmatically, contrast, present Legislature’s delegation In case addresses agency. to an executive op Opinion management natural resources of the state’s that practi- required data; of voluminous consideration necessity of these facts that evaluation dictated cal agency with consid- executive left to an be should expertise. concluded: "Where This Court erable violating punishment provides for statute regulations commission, the orders of a delegated to the commis- is not create a crime to sion.” cy’s quences agen- Therefore, that Id., the fact penal rulemaking conse- have direct could of au- did not invalidate thority. Resources v Natural See also Westervelt (1978); Dep’t Comm, 263 NW2d Mich supra. Seaman, of Natural Resources power to define These cases indicate legislative powers, not crimes, need be unlike some Legis- exclusively completely by the and exercised lature. Provided safe- sufficient standards and statutory guards scheme, dele- in the are included appropriate, gation to an executive legislative necessary, for the effectuation often powers. prem- Clearly, act is the controlled substances design similar to that em- ised on a ployed comprehensive group formulated a in Soule. The dealing with con- of crimes drugs adjudged An index of trolled substances. drugs dangerous compiled, or harmful was graduated according were for abuse. including Penalties, incarceration, fines and were gravity coordinated to reflect the the seriousnesss of the controlled substance of the offense

in- eight- Finally, Pharmacy, volved. an consisting pharmacists and member board of six public given strictly members, con- two was authority modify trolled the controlled sub- stаnces schedule to insure that developments it reflect current drug industry.

in the v Turmon Court notes, however, correctly Defendant that while Westervelt, approved regulatory scheme Soule, Seaman, supra, only included misde- crimes, meanor-level the controlled substances act is creates felonies. While it true that more serious flow consequences felony from a conviction under act, the controlled no substances we find meaning- ful delegation distinction between the to make regarding rules misdemeanor offenses and rulemaking relative to felony offenses. The severity penalty does not destroy accountability of the Legislature nor the safeguards protect to the public. Therefore, has not unconstitution- ally delegated power. a nondelegable

III. Failure Comply to With Statute Although defendant challenges raises various the Legislature’s delegation to the Board of Phar- the main macy, focus of the defendant’s challenge is upon itself, the statutory upon scheme not recipient agency’s exercise that power. Nonethe- less, defendant does briefly argue that the board delegated abused its authority failing to adopt the federal classification.

The government federal pentazocine scheduled as a schedule IV drug on 1979.6 February 21 1308.14(f). CFR The of Pharmacy promul- Board Michigan Both scheduling the federal and acts same include the 812(b)(3) example, criteria for the five schedules. For 21 USC states required findings that the for a schedule III substance are: "(A) drug The or other has a substance for abuse less than drugs or other substances in schedules I and II. "(B) drug accepted currently The or other substance has a medical use in treatment in the United States. "(C) drug Abuse of the or other substance lead moderate or physical dependence low high psychological dependence.” or 14.15(7215) 333.7215; MSA lists the same criteria. Opinion of the Court designating pentazo- gated 338.3120, AC, R drug April 25, on cine as a schedule Defendant substances argues § 7204 of the controlled "similarly the board to con- act directs notice of the once receives trol” a substance federal According agency’s defendant, action. to schedule as a failure the board’s drug unlawful act. is an schedule misperceives argument However, the au- this delegated thority Section 7204 in in this statute. entirety reads: rescheduled, designated, or deleted "If a substance under federal law and notice as a controlled substance thereof is shall administrator, given the administrator similarly under this article control the substance following publication in expiration days of 30 after the designating register of a final order a sub- the federal stance as deleting rescheduling a controlled substance or substance, period, 30-day within that a unless inclusion, rescheduling, objects the to or administrator case, publish deletion. In that the administrator shall objection par- afford all interested the reasons for opportunity At conclusion of ties an to be heard. decision, hearing, publish a the which publication the administrator shall by Upon final altered statute. shall be unless inclusion, resсheduling, objection to administrator, or deletion under control this article stayed until administra- under this article is added.) publishes (Emphasis tor the decision.” 14.15(7204). 333.7204; MSA Thus, this statute vests the board with discretion government drug —once the federal schedules a brings attention, it to the state board’s regarding state drug. must take some action

The board either mirror the federal scheduling object provide to that action and hearing disposition. Therefore, for an alternate Board of is not directed to automati- 655 v Turmon Court incorporate cally action federal into the Michi- gan act. controlled substances supreme fact,

In three state courts have ruled provisions requiring incorporation that automatic represent substance federal classifications an uncоnstitutional of state au- thority agency. Rodriguez, a federal See State v (La, 1980); Johnson, 379 So 556; State v 2d 84 SD (1970); Grinstead, 173 NW2d 894 State v (1974). W Va SE2d require § We find therefore does not adopt agency’s the board ‍​​​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌​​‌​​​‌​​​‌‌​‌​​​​​​​‍the federal decision to classify pentazocine as a schedule 4 substance. Sufficiency

IV. of Notice Finally, argues that his Fourteenth defendant rights process protection Amendment to due have regarding aspects been violated the notice of this expands act. first, Defendant on two areas: he argues "system post-act that the state’s [of] admin- istrative amendments” the controlled sub- deprived posses- stances act sion of him of fair notice that Second, was a criminal offense. defendant asserts that the board’s failure to com- ply requirement with the § Const art published that amended statutes be re-enacted and length represents independent at an violation of deprived the constitution which also him of notice unpersuaded of the statute. We either of arguments. these

A. Notice

Unquestionably, process requires due that defen- apprised dant be of conduct which a criminal prohibits. parameters statute quirements The of notice re- explored criminal

of statutes are often challenges vagueness. in the context of for In one 638 417 Mich op approval quoted this Court challenge, such Harriss, 612, 617; S Ct 347 US v States United (1954): L Ed 989 " of definiteness requirement constitutional 'The person give a that fails to statute criminal by a violated his contem- intelligence fair notice ordinary underly- The by the statute. is forbidden plated conduct сriminally held man shall be that no ing principle is reasonably not he could which responsible for conduct ” proscribed.’ to be understand 700, 714-715; 242 Dempster, v People Abate, (1976). See also NW2d (1981). 274, 282; 306 NW2d App Mich usually di- challenges course, vagueness Of lan- the actual the notice rected at case, defen- present In the of the statute. guage from deficiency arises the notice argues that dant rule. In agency’s publication form of is the concern underlying either situation responsi- criminally held man shall be same: "No reasonably not he could for conduct which ble proscribed”. understand to be various act contains The controlled substances First, incorpo- act notice. regarding provisions forth in the Administra- procedures set rates 333.7201; MSA Act. MCL Procedures tive 14.15(7201). pro- that all rules requires That act be filed with an shall mulgated 24.246(1); MSA State, Secretary State, "as 3.560(146)(1), Secretary and that advisable”, publish shall often as he deems it Michigan Administra- in a supplement rules 3.560(146)(3). 24.246(3); MSA tive Code. MCL Second, the act directs: Turmon v op registrants shall all notify "The administrator under article, senate, secretary this the the the clerk the representatives, attorney general, house of the department police change director of state of any scheduling rescheduling or not later 30 days than change 333.7231; before is effective.” MCL MSA 14.15(7231). provisions, AC, Pursuant to these R 338.3120, which classified as a sched- published Michigan substance, ule 3 was in the Quarterly Supplement, Administrative Code’s No. p supplement August 99, 92. The was issued on 1979. inquire

We must therefore whether these statu- applied tory provisions as to these facts person ordinary intelligence "a fair notice that contemplated by his conduct is forbidden the stat- ute”.

Initially we note time honored maxim that ignorance Blackstone, of the is no law excuse. p Commentaries, However, it would be unrea- presume knowledge to sonable this if access to the statute is unavailable. present question case,

In the the rule in was published supplement Michigan in a Admin- fully year istrative Code before defendant was possession drug. for arrested We do not find expect people it unreasonable to of this state acquire familiarity through to laws refer- compilation published by ence erence ato the state. Ref- the controlled substances act lead would the reader continually being to conclude that schedules by

modified Phar- Board of macy agency’s supplementation and that sought Montoya be Accord, should elsewhere. (1980). O’Toole, NM 610 P2d 190 Opinion op the Court suffi Therefore, provisions the notice we find process requirements.7 satisfy due cient Clause B. Re-Enact —Publish denied that he was defendant contends Finally, prohibited was that his conduct notice re-enact MCL republish failure Legislature’s 14.15(7216) 333.7216; after amendment relies on Const Defendant Pharmacy. 4, 1963, provides: 25 which art § revised, by or amended shall be altered "No law the only. title The section or sections of reference to its act altered pub- and or amended shall be re-enacted length.” lished at meaning plain examined the

This Court length Advisory article 25 at purpose of § 1972 PA Constitutionality re Opinion (1973). The Court con- Mich 208 NW2d cluded: says succinctly It language quite "The of 25 is clear. § straightforwardly (meaning statutory no law

enactment) revised, by altered or amended shall be * * * only. its title reference to Although in 25. only "There are two sentences § 'law’, reading second word is the entire section that 'law’ means act or it is obvious from the section of an added.) Id., (Emphasis p act.” 470. argu- point” process While not the "focal or "thrust” of his due ment, objects defendant also to the fact that this criminal offense is public compiled located in the health laws rather than section of the the criminal code and that not listed their substances are generic” "commercial or names. However, expect public it to utilize the is not unreasonable to index to the we take information is available ence or a call to a local to locate substances act. Nor do statutes the controlled statute; objection to the omission of trade names in the this Physician’s Desk Refer- reference to the pharmacist. Turmon op Clearly, the action Board of "statutory enactment”; not labeled a be statutorily agency promulgated authorized rule. As AC, such, R 338.3120 falls outside the ambit 4, § 25. of art

Additionally, prob- underlying note that we prompted 4, § lem which the inclusion of art 25 in the constitution has been promulgation. Advisory Opinion explained avoided the rule’s pur- pose 4, § art 25: prevent 25 is revising,

"Section worded alter- ing amending by merely or act referring of an printing language title the act and amendatory revision, then under consideration. If such a alteration allowed, public Legisla- were amendment given ture would not be notice would not be able to readily revision, observe alteration or amendment.” 389 the extent and effect of such

Mich published pen- code, When in the administrative presented was tazocine not in isolation bare with a Rather, reference to the controlled substances act. supplement the code set forth the entire list pentazocine substances, schedule with included. Thus, notice of "the ‍​​​‌‌​​‌​​​​‌​​‌​‌‌​‌‌‌​​​‌​​‌​​​‌​​​‌‌​‌​​​​​​​‍ extent and effect of such presented revision, alteration amendment” was clearly intelligibly. and

V. Conclusion having challenged Therefore, reviewed the sec- tions of the controlled act the act substances entirety, Legislature’s in its hold we Pharmacy to the Board of au- thority to schedule controlled substances in accor- dance delegation detailed criteria is not an unlawful power. Sufficient standards and safe- 417 Mich Dissenting Opinion Kavanagh, J. satisfy in the statute are included guards separation powers of both the requirements process. due doctrine and in ad- of the rule Additionally, publication sufficient notice that ministrative code Also, proscribed. was defendant’s conduct rules does not fall within promulgation board’s 4, of Const art the strictures § did not abuse its Finally, as a schedule in classifying discretion 3 substance. therefore Appeals

The decision of the Court of reversed. Cavanagh, Boyle,

Levin, Ryan, Brickley, JJ., Williams, concurred with C.J. (dissenting). The constitutional

Kavanagh, J. act, of the controlled substances infirmity 14.15(7101) seq„ et seq.; 333.7101 et 21 USC 801- patterned, federal act on which was Sinclair, People v spoke to which I is that (1972), 91; Mich NW2d (1972). Lorentzen, 194 NW2d 827 I would not disturb the decision of the Court of Appeals reversing defendant’s conviction.

Case Details

Case Name: People v. Turmon

Court Name: Michigan Supreme Court

Date Published: Nov 21, 1983

Citation: 340 N.W.2d 620

Docket Number: 69776, (Calendar No. 14)

Court Abbreviation: Mich.